 Good afternoon everybody. Thank you for joining us for another edition of condo insider. So today I would have with me. I'm so happy to have with me two of our prominent condo attorneys. We have Loree McGuire with Porter, McGuire and Kea Kona, and we have now land, who is a director with Damon the all of check and has dirt. Nice pronounced that right. Okay, so we're going to talk about, you know, and I know it's a tough subject with COVID and having a onsite COVID vaccine clinic. I know one condo has done it already. And they were very happy with the results and they have their second one scheduled. I can't remember was last weekend or if it's this weekend. They were very happy with the results with it being on property versus having people to go somewhere else. So we want to talk about the obligations for condo boards to really promote the health and safety of their residents and the guests that come on to the property as well. And they will apply to even if they have units that are short term rentals, and even their, their residents, and their guests, including any vendor contractors whether it's a condo contractor or a unit owners own contractor that comes onto the property. So, so statutorily, what is the obligation of the board of directors to, can they mandate that the residents be vaccinated and show proof of vaccinations. If you want to comment. I'm sure. Based on my research, I could not find any law, be it Hawaii or any other state that would allow a board of directors to mandate that owners and residents be vaccinated. I mean, basically, if you were to do that you would be subjecting these owners to medical treatment for vaccines in order to live in the condominium right. I was thinking in terms of, if you if you had a board and they were adamant about this, I think the most that they could do would be to seek to amend their governing documents like you would amend for any other provision and send it out to the owners and owners vote on it. And if it passes, based on the requisite percentage, then I think the board could enforce it. That being said, I don't know if it could stand up to constitutional scrutiny. So they would even even let's say it did pass and it did stand up to constitutional scrutiny. They would still have to allow for reasonable accommodations for any person who was disabled, such that they could not take the vaccine. And similarly for anyone that had any type of of a religious affiliation that would prohibit them from getting the vaccine. No, do you have any comments. Yes, so I think I agree with really that's the overall, I guess, baseline all these legal experts of course are discussing about this hot topic. There are certain states they may have certain statute giving association emergency power, but not in Hawaii. It really also depends on how your declaration bylaws are written. There's no such emergency power that's, you know, get provided to the association board to make such a major decision because when a unit owner buys a unit into this project, we got a right to leave in their unit and also a right to access common elements. So that really brought us to the second I guess later issue in this is kind of association board condition, a mandated COVID-19 vaccine for owners who want to access or use common amenities. That is probably a more defendable position compared with just requiring or you need owners getting a vaccine regardless whether you use common elements or not. But even still, you know, the later one as to a condition to use of common elements. That has still has a lot of issues you need to be careful about as Larry pointed out, of course, you know, 12 year old younger children, they are not even eligible for vaccine at this point. Also, you know, for people with a disability with a religious belief reasonable accommodation you need to provide those to them. And also, you know, there's always this balance you need to make. In general, of course, the situation has a right to regulate use of common elements to make sure one unit owners use of this common element will not and reasonably interfere with other unit owners. Let's give an example if someone is not wearing a mask. You know, he wants to use the common includes the clubhouse. You know, I would think this is a good example where the association would have the board would have the authority to ban that person from usage if you you're not in compliance with the mask mandate because the state governor's emergency order already covers that. And basically the association has the obligation to comply with the government orders. In this scenario, the board would have the right to exclude that person who refused to wear a mask from use of common elements. But as to vaccine mandate, I think it's a very, you know, hardly debated issue. If a board wants to go ahead to do that definitely consult with your legal counsel first because that may open up, you know, claims, you know, by certain unit owners. But of course, you know, the arguments go both ways. If the association does, does not does nothing, you know, you don't really, you control the common elements you also own the common elements. You don't take any sanitary procedures and you don't enforce safety protocols during the pandemic. You could also be inviting claims by owners who got, you know, infected when they're using the common elements. You know, you have hard cases where certain condo, you know, project on neighbor island becomes the cluster center of COVID-19 cases where overnight cases we're finding one project you don't never you will never want your community to be on the news, you know, for that. What about if they arranged for a COVID vaccine clinic to be on property? Because I know DOH is really strongly supporting and they will, they actually will arrange for one of the health care providers, Queens or Kaiser, well, Kaiser won't but either Strom or Queens. Queens is really good to go actually on site. So would there be anything that, I mean, would you guys agree that the board is within their ability to arrange for that? Because it's going to kind of help some people that don't have a car so they can't drive. And also with the employee vaccination requirement because according to John Knorrick, we're a business. So we're, we're condos are employer so they can mandate that but, you know, having a clinic on site would help the employees also to get vaccinated on that day. So would you guys agree that the boards can arrange for a vaccination clinic to be done on property? So you want to go first? Yeah, sure. I think yes they can. I mean, what they're trying to do here is facilitate their owners and make it easier for their owners to obtain the vaccine and I noticed too that I believe it's Queens will provide you with the certificate of liability. So that's going to be the main concern for the association is the liability if somebody is injured during one of these clinics. But if they're willing to provide you with that certificate of liability then that gives you that comfort. But, you know, in this regard, you are helping people, especially if you have elderly folks that live in the project and don't have a car. Maybe they ride the bus and they're paranoid right now because of COVID they don't want to ride the bus and so they're not getting the vaccine because of that. So this would facilitate those people to get the vaccine and it's also a forum for education because so many people in my experience who are fearful of getting the vaccine. It's because they hear so many different things from all different directions. They don't know who to believe or what to believe. If you have health professionals on site, then they can answer whatever questions your owners and residents may have with regard to COVID and with regard to the vaccine and, you know, issues that may be of concern to them. And that's what you want to basically resolve is any fears that they may have so that you can give them the confidence that they need in order to obtain the vaccine. I agree. I think it's a very good idea for association to be the hosting of vaccine administration. And if, you know, the state department health or the medical facility they're willing to provide a certificate liability for the association before they host this this would be perfect. And, you know, for some suggestions I would the board should have a written resolution basically seeing the association is going to use the common element to host such a vaccine administration event and preferably that should be limited to residents and their close families. That way you're not really inviting the public onto your project because if you open that up to the public that may bring in ADA issues or some other issues. I think it's safer to limit this even still to your residents and their close family members. And at the same time, it's also a good idea to notify your association insurer, you know, to give them a notice that this is upcoming. And it's likely the department or even the hospital that that's helping you collaborating with you to do this may give you some document for you to sign. That's the case you should run it by your legal console as well. And then, you know, of course, you want to make sure before you host this event you don't have any like, you know, potential hazard as the premise liability issues like you don't want their sleep and fall. You want to be in water somewhere on the parking lot or you want to remove those trip of the potential how they're to make sure you know you're ready for this event and also, you know, enforce your existing policies a mask mandate, social distancing, and then you know keep a good communication with your That would be excellent. I think if all the associations are taking this step, we should be able to, you know, do much better vaccination because these days, when I hear from friends from, you know, other connections in the community. Most of the people who got, you know, infected that's at this point are those who haven't got the vaccination yet. Right. So, when Queens puts it together, or if Queens is going to be the one doing it, they'll actually do a site visit onto the condo. And they'll look at where or the plan the condo is planning for them to give them the space, because one thing they're going to look for if they have Wi Fi electricity for the laptops because they're all on laptops. They bring their own table and chairs, they sanitize everything. They have banners, you know that, you know, say Queens COVID, whatever it was. And so they do initial site visit first with like the resident manager kind of do a walkthrough. And then they'll also arrange with Queens they will arrange for the certificate of liability insurance, and it takes a matter of dates. You know, so there's really a short lag time for when you when they were initially do the visit to the date that they can set it up. They have even arranged. They have the connections that you've even arranged for police department to be present if they needed to. So, when I help them do the, the one night boat harbor, when we drove up I'm like, there's three police cars that drove through and drove out I go, Why is that and they go, Oh, we were there yesterday and arranged for them to be there. So they actually had one guy that stayed there the whole time. And they did theirs. And they did have an anti vaxxer that lived on property. And it was kind of crazy but we kind of knew about it in advance, you know, and they did consult with their legal counsel to make sure they're on the same wavelength, and they were okay. But it created a little stir on that day but, but put the police took care of it, you know, they were actually there to help ease that that tension. So, the board was the board president was very pleased with the way everything worked out. So, and she's really happy because they do things occasionally, like arrange because they have a lot of seniors in their, in their building, or in their property, and every once in a while they'll arrange for like special services, and if anybody wants to jump in on that, you know, they get, they can do that. So this was another one of their special services. Because I think we really need to make it all the kind of efforts in DOH is really, really bending over backwards to really get these vaccinations done, so that we can really stop this and I'm really kind of cringing for the next couple weeks if the numbers are going to go back up again because of Labor Day weekend, you know, I mean they started to come down but now like, you know we had a long weekend. Okay, so how would a condo board set into policy and procedures on how to handle coven. They may or may not require it. I mean that's going to be like, they may not be able to require it but how can they implement policies and procedures to follow what is being mandated by the government, whichever state and city government and federal government. Well, you want to take a stab at that one. Sure. So, you know, as I said, I guess at this point it's more like reasonable as standard, you know, the business judgment rule, the board got to make a decision on behalf of your project, what would be the best to do to protect the overall health and well being of your residents. So, you know, of course we have CDC guidelines. We still have governors emergency orders on mask mandates, like certain indoor dim be considered a high risk, they would want that capacity to be limited to 50%. And each county also has, you know, different restrictions. You know, like a while who they're going to roll out the safe access, you know, program. They also the mayor's most recent emergency order also required certain indoor recreational facilities or indoor gym movie theaters, or, you know, certain other businesses like restaurants, those commercial facilities to comply with either show proof of vaccination or you have to do for patrons do like a 48 hour Kobe test negative result, or for employees or other volunteers. You have to do the weekly test and, of course, subject to the exceptions without we just discussed about. So, you know, that could be like a part of like a guide on the reasonable standard do you want to go that far, or you want to just stay within the CDC guidance and then ask doing the social distancing, and of course you want to make sure you know there is some, you know, had sanitizers available in your common laundry room elevator, you know, these others to make sure the pools should have written rules, the rules and the tool for the association to use to utilize and to enforce the, you know, your policy your project specific policies during this pandemic. And then you know you follow whatever your bylaw says how you can pass amendment to rules and regulations tie that into your finding policy or whatever procedures that in place for enforcement. So simply rather than having to reinvent the wheel they can just simply say we're going to follow our city and county and state and then CDC guidelines, because, because your city and county they really follow CDC guidelines. So they can simply say we're going to comply with our, what is the one of what who.org guidelines that are in there, right, which is simply CDC guidelines. They simply say we're going to follow those guidelines rather than creating their own guidelines. Well, I think the problem right now is the Conti restrictions in listening Honolulu is stricter than the federal one and the state one. So, as I said, you know, for the state one and the CDC one that's definitely binding upon the association, but as to the city most recent emergency order whether that applies to your, let's see your indoor gym or your indoor recreation room in your project. That is still a question because the program so new the city hasn't really clarified, you know, but they say in a residential project if your dream is only open for the residents, then you're exempted from this emergency order. And they also say, even if your business is not subject to this order you're encouraged to also, you know, apply these rules, but then they come back to our borderline question whether the situation has this authority to impose on this kind of restrictions. Then, you know, of course, there will be owners challenging. But as I said, it's really I think we should watch and see, and it's more likely based on a risen bonus, you know, if later on the city clarified. Okay, so this is not applicable to associations, then, you know, you know, you do not have to comply but if the city says, if your project, you know, has guests, you know, even staying less than 30 days. They would consider you subject to this program safe access program. Then, you know, of course, you've got to update and make sure your projects in compliance. It's a very fluid issue. I think the government they are also watching the data and try to adjust their policies at the same time. I think that's a good point. I didn't realize that the city and county ones are a little bit, a little bit more than the other ones so that's a good point to really know. So, let me ask you this question. So, what about any kind of requirements or mandates can the board put on any guests, or even their own vendors and even the residents own vendors like the repair people that come onto the property. Well, it would depend on your governing documents and what your governing documents say the board can implement a policy with regard to its own vendors, such that the board can require that their own vendors be vaccinated in order to come on property. However, in terms of requiring that an owner's vendors or an owner's contractors be vaccinated, that will depend on the amount of authority that the board is granted within the governing documents itself. I know, for example, when John Kanorek was on the program, he mentioned that an association can basically tell owners in terms of whether or not their, their contractors have to be vaccinated, but he also said, you need to check your governing documents and that's the key here because if your governing documents don't give the board the authority to do that, then they can't do that. I mean that's a very broad authority and some documents do give them that authority, but not all documents do. I think they can implement a policy as to their own vendors. Likewise, in terms of an owner's guests. I don't believe they can say that an owner's guests have to be vaccinated they cannot to my knowledge I've not seen that anywhere. But they can do that with regard to their own vendors. So, so just to kind of recap because I know we're kind of getting close to our time so really start with the city and county guidelines because they have a little bit, a little bit bigger guidelines right and then also check your cc and your governing documents, and then work with your, your, your condo attorney council legal counsel to before you start implementing all these policies and procedures and all these rules. But basically for condos were considered a business. So with John Kanorek he had said that condos can mandate employees to be vaccinated and follow those kind of procedures as well. And in my to Raylene in terms of a mixed use project where you've got commercial and residential in these in the mixed use projects where they've got restaurants say on the bottom floor. Those restaurants have to comply with the mayor's new order, and that's the responsibility of the owners of those restaurants. That being said, the association can send out like a memo to all of the commercial vendors, reminding them of the, the mayor's new, you know, most recent orders and the need to comply with those orders, but it's not the association's responsibility to see that they do comply it's actually the owner of the commercial units responsibility. Oh, good point. Good point. Okay. Okay, so I'm going to open this up any best practices other than what we've already talked about or if you want to recap it. So now you want to start off with like the best practices for these for our condo properties on how to handle this. So, you know, we're in this together really I think the association board needs to keep updated with these new rules rolling out either from the government from the CDC. So, there are resources available, you know, through community associations Institute, even our local chapter, like our condo insider program has all these valuable informations, besides of your condo attorney which you have to pay to get the legal advice and forms. So free resources out there, you know, you can utilize for example a good idea, you know, for people to use the common amenities, it might be a good practice for the associations to consider requiring. I see a liability release waiver for guests for someone who hasn't got, you know, I think across the board if you want to use it during this pandemic time, you got to, you know, sign that form. So, of course, the, the city also recommended, you may it would be a good idea to keep a registered list of whoever uses the facility if someone, you know, gets tested positive, you know who to contact for them to get tested to avoid this become a cluster event for spreading the disease. You know, those are all practices, of course, if you have the budget, you can also consider installing those temperature, you know, measuring devices in your facility, and also make sure you know your policies. You know, all the union owners, residents, tenants are on the same page about what your project rule is. If someone is sick, they know they have to stay quarantined for certain days before they can go out or they can access those common areas. There should also be guidance on, you know, what, you know, you should do if someone gets tested positive those protocols, those forms should be ready in place if you need it. And similar thing for employees, you know, as an employer, you know, the association similar as any other employee employer has the right to mandate that Kobe but then there's going to be exceptions, accommodations has to be provided. You want to make sure you know what to do when something happens, not just, you know, all of a sudden, when you need to respond rapidly but you're not ready. That's not going to be good. Okay, you want to add on anything. You agree. I pretty much agree with everything Naline said I am. You know, I think the main thing is you want to continually update your policy. So as new government orders come out as new CDC guidelines come out. You can update your policy so that you're in line certainly with the CDC guidelines because you're going to have owners that are following this and they're going to want to know what our policies are at every given moment and I would also post those policies in your elevators in your lobbies so that they're easily accessible to everyone at all times. And I want to send a kind of a little reminder to everybody because I know everybody's trying to transition to town square. So all the communication they wanted to be town square. And I told some people I said you know what, everybody comes home at the end of the day they've been on their laptops or computers, desktops all day checking emails. I personally will not want to come home and have to log into another thing and read emails and I make when I come in that you can post a notice, or in the elevator about something new that's important. That would be really a lot better than just saying oh you go need to log in the town square. I mean, I know it's supposed to be simple but sometimes to me in this particular state of where we are today, that sometimes if it's like something you really have to do the manual and post a notice and not say well you need to go check online, you know, really, and even CDC guidelines and the one awful guidelines. Sometimes I tell people I go you need to post on your bulletin board. So everybody sees it and post the link if they want to check it themselves, you just really need to sometimes do things manually. So you can get the message out. So, and I think we're kind of running out of time and I really, really both of you, Larry, and I really appreciate you taking the time out of your busy day to do this condo insider. We are going to email blast it out to our, our contacts, along with john canard so I was waiting to do this one and send them both out together, so that they would have both of them. So thank you so much, both of you for doing this for me, and for ACCA. And some people wanted to know our ACCA is position on it and we really ACCA does not take any position. I mean really we just do what we're support what a reasonable person would do, you know, and we have an obligation to protect ourselves and our families and the people around us. So what you need to do to protect yourselves from this COVID. You know, I, I'm hunkering down I mean, I had some banking things to do and I just waited till it was like, I have to go do it today, you know, but I if I don't have to go up, I'm not going anywhere. So thank God for. Thank goodness for these webinars and zoom. So thank you. Yes, thank you and then we're going to be posting the DOH contact information to arrange for a COVID site, along with our email blast. Thank you everybody. I really appreciate it. Hope to see you guys in person soon. All right. Thank you. Take care and stay safe everybody.